Recent country guidance on Afghanistan

The Home Office make decisions on asylum claims based on the individual asylum seeker’s testimony and any documentary evidence they submit, as well as information about the situation in that person’s country of origin.

The Home Office produce “country policy and information notes” for this purpose – you can find them all here.

These policy and information notes will include reference to the latest “country guidance cases”. These are asylum appeals chosen by the immigration/asylum tribunal to give legal guidance for a particular country, or a particular group of people in a particular country. The decisions in these cases are assumed to be based on the best possible evidence about that country at that time. Until there are significant changes in that country, a country guidance decision sets out the law for other asylum-seekers from that country.

If your asylum case goes to appeal at the First-tier Tribunal, the judge may also refer to the country guidance case on your country in their decision. Read more about appeals in our Toolkit here.

Afghans perceived as “Western”

In January 2018, the Home Office issued a new country policy and information note on Afghanistan, dealing with the issue of “Afghans perceived as Western” on return (voluntary or forcibly removed) to Afghanistan.

The note states that Afghans perceived as westernised do not constitute a “particular social group”.

Membership of a particular social group is one of the reasons covered in the Refugee Convention, as why someone may fear persecution. Read more about that here. Particular social group is the most complicated area of the Refugee Convention grounds. This is because it is quite vague and can cover a variety of situations. This category is heavily reliant on case law to explain what it currently means, but it is partly defined in the 2006 Qualification Regulations:

(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;

The Home Office policy note says that Afghans perceived as westernised do not constitute a particular social group because it is not an “immutable” characteristic, meaning it is not something that cannot be changed (see point (i) in the defintion above). The note also says that ‘Afghans perceived as westernised” are not a distinct group in Afghan society (point (ii) above).

The note says that because there is no link to one of the five Refugee Convention reasons, cases will be considered with a view as to whether the person will face a real risk of serious harm sufficient to qualify for Humanitarian Protection. Read more about that here.

The note then turns to consider that risk. It concludes that there have been “isolated reports of attacks” on people who have returned to Afghanistan, but that these have been cases involving Hazara, and therefore the motivation was ethnicity, not perception of being westernised.

The note goes on to say:

“Given the handful of reported attacks when compared against the large number (many thousands) of returns, there appears to be a very low risk of violent attack or abduction.”

The note acknowledges that returnees may face discrimination and stigma but that this doesn’t amount to persecution. Read about the difference between discrimination and persecution in our blog post here.

The note goes on to say that “in most cases it is due to feelings of shame and failure of having sought and failed to gain asylum and therefore failed to meet their family and community’s expectation of their migration”. The Home Office determines that this is distinct from a perception of being westernised, however the report on which they draw this conclusion does not seem to make this distinction and it could be argued that the perception of failure is clearly linked to a perception of being Westernised, as the former is dependent on having spent time in the West.

Most conclusively, the note states that

“When further submissions are made on the basis of risk due to being Westernised, they will be considered to be clearly unfounded for the above reasons.”

You can read about further submissions (to be considered as fresh claim) in our Toolkit here. If the Home Office considers further submissions to be “clearly unfounded”, they will be refused with no right of appeal.

You may find it useful to read this Asylos research report from August 2017 – on the situation of young male ‘Westernised’ returnees to Kabul – which contains a variety evidence that shows a rather different picture to that portrayed in the Home Office information note.

Afghan country guidance case

In April 2018, the Upper Tribunal published a new country guidance case on Afghanistan (see above for definition of country guidance cases).

The case looked at two aspects of the situation in Afghanistan: risk on return to Kabul from the Taliban; and internal relocation to Kabul. Internal relocation is when it is argued that although you may not be safe in your home village/town/city, you would be safe elsewhere in your country – in this case, in the capital Kabul.

On risk from the Taliban, the Tribunal concluded that:

A person who is of lower-level interest for the Taliban (i.e. not a senior government or security services official, or a spy) is not at real risk of persecution from the Taliban in Kabul.

The lawyers for the asylum-seeker argued that persecution could arise through being a specific target; and also through checkpoints manned by the Taliban. Evidence was presented of a blacklist of 14,500 names, but the Tribunal decided that even in the unlikely case that blacklist exists, there was not enough evidence that a low-profile person would be identified, located and targeted.

On the checkpoints in Kabul, at which people could be stopped, questioned, and identified for persecution, the Tribunal found that “the chances of encountering such a checkpoint, being stopped at it, being questioned by the Taliban, being identified as a target and suffering harm as a result are, cumulatively, too remote to give rise to a real risk of harm.”

The legal test for whether internal relocation can be suggested as a form of protection (rather than refugee status, humanitarian protection or another form of leave to remain in the UK) is whether the relocation, in this case to Kabul, would be unreasonable or “unduly harsh”.

The Tribunal found that:

“it will not, in general be unreasonable or unduly harsh for a single adult male in good health to relocate to Kabul even if he does not have any specific connections or support network in Kabul…

Although the judgment also notes that:

“the particular circumstances of an individual applicant must be taken into account in the context of conditions in the place of relocation, including a person’s age, nature and quality of support network/connections with Kabul/Afghanistan, their physical and mental health, and their language, education and vocational skills when determining whether a person falls within the general position set out above.”

The Tribunal found that someone with a support network or specific connections in Kabul is may counter a particular vulnerability of an individual on return.

The Tribunal noted that Kabul suffered the highest number of civilian casualties (in the latest UNAMA figures from 2017) and the number of security incidents is increasing, but that:

“the proportion of the population directly affected by the security situation is tiny. The current security situation in Kabul is not at such a level as to render internal relocation unreasonable or unduly harsh.”

This particular case did not focus on indiscriminate violence (although it was a factor considered in whether or not internal relocation was reasonable). The most recent country guidance case on indiscriminate violence in Kabul is from 2012, and as this Free Movement blog post points out, may be due for a challenge.

The Home Office issued a new country policy and information note, on the security and humanitarian situation in Afghanistan, after this judgment was published. You can read it here.

The Home Office also issued a new country policy and information note on Afghanistan: unaccompanied children, in April 2018. You can read it here.